High Court Reverses Decision in Divorce Case Involving Adultery

OUTCOME: Allowed

High Court of Australia [NAME], [NAME] JJ. [NAME] v [NAME] [1961] [NAME] 27

ORDER Appeal allowed; so much of the decree of [NAME] [APPELLANT]. as dismisses the appellant's petition vacated; cause remitted to the Supreme Court to be further dealt with on the basis of the findings made by the [NAME]; the appellant to pay the [NAME]'s costs of this appeal.

The judgment of the Court was delivered by [NAME] J.

May 22 [NAME] and [NAME] JJ.

This is an appeal from a decree nisi made by the Supreme Court of Victoria, [NAME] J., on a petition presented by the [NAME] appellant seeking the dissolution of his marriage with his wife, the [NAME], on the ground of her adultery with the [NAME], and a counter-petition by the wife seeking the dissolution of the marriage on the ground of the petitioner's repeated adultery with a Mrs. [APPELLANT].

In his affidavit verifying the petition, the appellant admitted that in October 1958 he had left the matrimonial home and gone to live at another home, and that Mrs. [NAME] was living with him there.

The case was tried by [NAME] J. with a [NAME], and after a hearing lasting, I think, three days the [NAME] returned a verdict finding that both the husband and the wife had been guilty of the adultery charged, and that the [NAME], the [NAME], had been guilty of the adultery charged with the wife. On that verdict, it was for [NAME]. to decide, in the exercise of the discretion which he had under s. 81 of the Marriage Act 1958 Vict., whether to pronounce a decree nisi for dissolution of the marriage on the petition or on the counter-petition, or to dismiss both the petition and the counter-petition.

During the hearing, counsel for the appellant intimated an intention of calling Mrs. [APPELLANT] as a witness, but added that it need not concern the [NAME]. After the [NAME] had returned its verdict, the learned judge recalled counsel's intimation and counsel said that it was only on the question of discretion that he had intended to call [NAME]. His Honour said at once that he proposed to exercise his discretion against the petitioner because of his adultery, and to grant the [NAME] a decree on her counter-petition.

Some suggestion has been made that, in announcing this decision without allowing an opportunity for the calling of [NAME], the learned judge fell into error, but it is clear enough why his Honour took the course he did: the only materiality which Mrs. [NAME] evidence could have was to establish facts tending to show that a dissolution on one petition or the other was desirable so that the husband might be set at liberty to marry her. It could have no materiality unless the judge was considering whether he ought to dismiss both petitions, and his Honour's action in stating at once that he proposed to exercise his discretion against the husband and in favour of the wife shows that he was not considering dismissing both petitions. It was therefore beside the point for him to hear any evidence which [NAME] might be able to give.

His Honour went on to say that his decision to dismiss the husband's petition was based upon the interests of society, and to show by quoting a passage from this Court's judgment in [NAME] v. [NAME] [1] , that he considered the choice between granting the petition and granting the counter-petition should be made in a way which would show the court's disapproval, in the interests of society, of the conduct of the husband in leaving the matrimonial home and going to live with [NAME].

1. (1955) 94 C.L.R. 347, at p. 351.

We see no ground for thinking that his Honour fell into any error in basing his choice upon that consideration; but the assumption, the very natural assumption, which underlay it was that which his Honour made clear by not staying to consider what [NAME] might have to say, namely, that the decree nisi which he was about to pronounce on the wife's counter-petition, would be made absolute in due course and the husband would be set free, as I have said, to marry Mrs. [NAME].

It now appears that the wife, instead of having her decree nisi made absolute, has filed a writing under s. 86 of the Marriage Act directing that the decree nisi be not made absolute, and it appears that under the same section a memorandum has been entered by the [NAME] on the petition that the decree nisi has been discharged.

If [NAME]. had been able to foresee this event—and not only, may I say, was there nothing before him to suggest its likelihood, but everything must have seemed to point in the opposite direction—his problem in relation to discretion would have been entirely different from that to which he addressed his mind. Not only would he undoubtedly have allowed Mrs. [NAME] to go into the witness box, but he might very well have insisted on hearing what evidence she could give. Of course the interests of society would still have been a matter for his consideration; but he would hardly have disposed of it then in terms of the statement which he took from [NAME] v. [NAME] [1] . It would have been a very different problem, and one not to be answered by considering only whether disapproval of the husband's misconduct should be marked by the form of the decree to be made, but to be answered by considering, amongst other things, whether the interests of society might not, after all, be better served by enabling an irregular union to be converted into a marriage.

1. (1955) 94 C.L.R. 347.

It is not possible for us, exercising our appellate jurisdiction, to hear evidence from Mrs. [NAME] and give effect, as in the first instance, to a discretionary judgment of our own, upon a situation which the learned primary judge did not have before him. Technically, it would no doubt have been possible, and it would have covered the possibility of the event which has happened, for his Honour to have adjourned the husband's petition for sufficient time for the wife's decree nisi to be made absolute, and to order that upon its being made absolute, the husband's petition should stand dismissed.

The proper course appears to us to be the equivalent of that, that is to say, to vacate so much of the decree under appeal as dismisses the appellant's petition, and to remit the cause to the Supreme Court to be further dealt with on the basis of the findings of the [NAME]. No doubt it will come in due course before the same learned judge, but our order must remit it to the Supreme Court.

So far as costs are concerned, we have discussed that matter and are of opinion that the appellant must pay the [NAME]'s costs of this appeal, but that there should be no order as to the costs of the [NAME].